05.26.15

Its been interesting to note that AT&T and Verizon did not file any petitions to deny the AWS-3 license applications of DISH’s two Designated Entities, NorthStar and SNR, despite Verizon and AT&T both having earlier been vocal in denigrating DISH’s bidding strategy in their comments in the FCC’s bidding procedures docket 14-170.

Instead the opposition was left to a couple of small bidders plus a collection of ‘public interest’ organizations, who followed the path set out by Verizon, and alleged violations of antitrust laws by DISH and its DEs. DISH’s response argued that there was no antitrust violation and that the joint bidding arrangements (including realtime coordination of bids during each round, which most people including myself thought was not allowed) were fully disclosed.

While the eventual FCC decision on DISH’s $3.3B discount remains uncertain (and according to FCC Chairman Wheeler would not in any case involve denial of the licenses or reauctioning of the spectrum), it is far from a slam dunk (as some argued originally) that DISH will keep the discount. Nevertheless, it seems to me that Verizon and AT&T could even be better off if DISH kept the DE discount, and that might provide one reason why they held back from challenging DISH’s licenses directly.

Of course DISH would lose $3.3B if the DE discount was rejected, but in that case, DISH would acquire NorthStar and SNR under the terms of its agreements with the DEs, and would be free to consolidate and restructure its AWS-3 and AWS-4 spectrum holdings. After that, in my view, the most likely end game would be to spin-off all of DISH’s spectrum (AWS-3, AWS-4, 700MHz E-block, PCS H-block) into a holding company, which could lease individual licenses to any wireless operator, and raise perhaps $20B-$30B of debt at the spinco level, flowing that cash back up to DISH (and perhaps allowing Ergen to take some chips off the table).

Any repricing of the AWS-3 spectrum would presumably increase Ergen’s asking price for his leases, meaning that Verizon and AT&T might ultimately be the ones to suffer from the removal of the discount. In fact Verizon might even decide it had to pay up and pre-empt the spinoff because of the prospect that this arrangement would make more spectrum available in key markets for both T-Mobile and Sprint.

However, in order to execute these spinoff plans and enter into meaningful leases of AWS-4 spectrum, it is critical that DISH secures interoperability for its AWS-4 downlinks (2180-2200MHz) with the AWS-3 blocks. T-Mobile and Sprint know all too well that building out networks in bands without an ecosystem (such as T-Mobile’s deployment of WCDMA/HSPA in the AWS-1 band, which was ultimately abandoned, and Sprint’s PCS G-block LTE network) makes it much more difficult and expensive to secure handsets (hence there was no WCDMA iPhone operating in AWS-1 and Sprint had to guarantee billions of dollars of purchases to secure a G-block iPhone). As a result, they are unlikely to want to get into bed with DISH and make use of AWS-4 unless and until there is some guarantee of a handset ecosystem.

While DISH can pursue a band class designation for AWS-4 supplementary downlinks through 3GPP, we only need to look at the story of Band Classes 12 and 17 (in the lower 700MHz band) to see that a band class designation on its own, without any regulatory mandate for interoperability, is insufficient to ensure a handset ecosystem is created. And at the end of the day, the FCC was forced to intervene and broker a deal to ensure interoperability in the lower 700MHz band, before T-Mobile moved to buy 700MHz A block licenses for its low band coverage buildout.

In the absence of technical impediments to interoperability, if the Commission determines that progress on interoperability has stalled in the standards process, future AWS-3 licensees are hereby on notice that the Commission will consider initiating a rulemaking regarding the extension of an interoperability mandate that includes AWS-4 (2180-2200 MHz) at that time. Should we undertake such a rulemaking, relevant considerations may include considerations of harmful interference, technical cost and difficulty of implementation, and the extent to which licensees are common to both the AWS-3 and AWS-4 bands.

Given the likelihood that AT&T and Verizon will engage in delaying tactics (not least due to the relatively short period in which DISH needs to start moving ahead on deployment), DISH will very probably need help from the FCC to push AWS-3/4 interoperability forward. However, if DISH is seen to have gamed the auction rules and secured an unwarranted multi-billion dollar discount, it will be far more difficult for the FCC to help out DISH on interoperability over AT&T and Verizon’s objections.

That might in fact be AT&T and Verizon’s ultimate goal: box DISH in with no possibility of a deal with T-Mobile or Sprint to put its AWS-4 spectrum to use, and wait for Charlie to cry uncle when he runs up against his AWS-4 buildout deadlines. Note that it is pretty much a foregone conclusion that the 4 year interim deadline to cover 40% of the population in each Economic Area by March 2017 will be missed, which will bring forward the final 70% coverage deadline to March 2020 (the timeline was extended to 8 years as part of the H-block deal in December 2013, but one year will be deducted if the interim deadline is not met).

Thus if DISH is unable to reach lease agreements with T-Mobile and/or Sprint for an AWS-4 buildout by the first half of 2017 at the latest (which will require interoperability to be secured in the next 18 months or so), Ergen will be under considerable pressure to moderate his price demands for a sale to Verizon or AT&T. As a result, AT&T and Verizon may win even more if DISH keeps the DE discount, than the $3.3B that DISH loses if the discount is rejected.

05.05.15

In the wake of Globalstar’s TLPS demonstration at the FCC in March, it seems that the company has gone all in to push for an order approving TLPS in line with the rules proposed in the November 2013 NPRM. Indeed, Globalstar now seems to be losing patience, telling the FCC last month that “it is time for the Commission to move forward with an order in this proceeding” and that “it would also be bad policy and bad precedent for the Commission to require additional test data for every potential deployment scenario that would be possible under the Commission’s proposed TLPS rules.” Globalstar has also taken the decision to ignore short sellers, such as Gerst Capital, who raised additional questions about potential interference with Bluetooth.

Now that LTE-U/LAA has emerged as a major concern for users of unlicensed spectrum (and an issue for the FCC), due to the potential to crowd out existing applications, the freedom that the existing NPRM proposal would grant Globalstar to shift to a supplementary LTE downlink configuration (if that ultimately provided the best opportunity for monetization) brings additional complications to the FCC’s decision. And Google has also weighed in, presumably because it sees TLPS as a potential rival ecosystem to its work to open up additional small cell spectrum in the 3.5GHz band.

The FCC has not yet given much of an indication about how it will act, although it is notable that NPRMs which confer a substantial benefit on a private company often involve additional compromises to benefit the public interest (as happened with DISH’s AWS-4 order, which, over DISH’s vigorous objections, changed the uplink OOBE limits to ensure the PCS H-block could be auctioned). However, in late April an unnamed FCC official told Bloomberg that “The Commission will consider the results [of the demonstration] in determining what next steps may be appropriate in the pending rulemaking.” The mention of next steps in the plural is particularly intriguing, since issuing an Order to conclude the rulemaking at this point would only require a single step.

Globalstar continues to maintain in investor presentations that “process completion/TLPS authority” is “expected shortly”. That appears to assume that the FCC rejects the demands for more testing of TLPS and simply moves forward with the NPRM as written, since we have not yet seen any evidence of potential compromises (such as for example a response to Iridium’s latest proposal). As I noted at the beginning of this post, this looks to be a high risk approach: if Globalstar doesn’t get what it is asking for, and doesn’t proactively offer to move forward with additional testing and/or other compromises, then any resolution of this matter is going to be delayed for many months, possibly even beyond the end of 2015.